O'Brien: A clash over investigative power

By Timothy L. O'Brien/Bloomberg Opinion

Sunday

Feb 24, 2019 at 4:31 AM

Andrew McCabe, who briefly served as acting director of the Federal Bureau of Investigation during the tumultuous months in 2017 after President Donald Trump fired James Comey, is making the rounds to promote his new book, "The Threat.

Senior law enforcement officials putting their names to sensitive details of ongoing investigations - particularly ones as consequential and fraught as the current examination of the president's intersection with Russia - is problematic. Going on tour is doubly ticklish. If G-Men are really dedicated to ensuring that justice is served and investigations are sacrosanct, then the public might expect them to remain behind the scenes until a probe runs its course.

Comey shattered those expectations by unlocking the riches and attention federal investigators can snare from a big book deal in the Trump era, when reputations, facts, the rule of law and the Constitution are all in play. McCabe won't be the last law enforcement official to follow in Comey's troubling footsteps. Yet he also isn't a polarizing and elusive spectacle like Comey; he comes across as a dedicated bureaucrat who didn't seek the limelight until circumstances compelled him. But he's touring, which makes him a piñata for critics of the Justice Department and Special Counsel Robert Mueller - especially when controversy already trails him.

McCabe was forced out of the FBI last year after the agency's inspector general accused him of dissembling about his communications with the media (a charge he denies; he's suing the FBI for wrongful termination and defamation). More recently, he invited slings and arrows by disclosing that the Justice Department's deputy attorney general, Rod Rosenstein, considered invoking the 25th Amendment to remove Trump from office. McCabe also said that he personally ordered up obstruction of justice and counterintelligence investigations of Trump after Comey was fired to learn if the president might be a Kremlin asset.

That's … a lot of stuff.

It's also tailor-made for a Deep State crowd determined to see a hidden hand inside the federal government trying to engineer a coup and to see McCabe as the embodiment of a law enforcement agency gone rogue. In that capacity, McCabe's actions are part of a larger inventory of critiques launched over the last two years or so meant to undermine the bona fides of the FBI and Mueller's investigation: the suspect Steele dossier; potential abuses of the Foreign Intelligence Surveillance Act; recurring questions about why investigators allegedly kept giving the Clinton Foundation a pass; Rep. Devin Nunes, the former head of the House Intelligence Committee, bouncing around on his pogo stick; Mueller having a vendetta due to a dispute with Trump over membership fees at a Trump golf club, and so on, each more ridiculous as you slide further down the Deep State/Witch Hunt rabbit hole.

None of these efforts have kept Mueller's investigation from rolling along, silently and steadily, as well they shouldn't. Dig into any one of the claims and they're hardly dispositive; sometimes they're even funny. When it comes to McCabe, his current critics, like Sen. Lindsey Graham, have peddled a poisoned-at-the-creation argument (i.e., he was so biased that the Mueller probe and efforts to scrutinize Trump more closely must be biased by extension). For argument's sake only, concede that one to Graham because - so what?

As any timeline of the Russia investigation will show, the FBI had already begun investigating Team Trump more broadly in the summer of 2016, several months before McCabe launched two probes targeting the president specifically. In those earlier months, the FBI already suspected that a Trump campaign adviser, Carter Page, was acting as an agent of the Russian government. The FBI also believed that Russian agents told Page and another Trump adviser, George Papadopoulos, that the Kremlin wanted to help Trump defeat Hillary Clinton in the 2016 election. The FBI had good reason to keep casting its net wider and wider, and given what we now know about the actions of other Trump advisers like Paul Manafort, Michael Flynn, Roger Stone, and Michael Cohen - which the FBI knew about well before the public did - is there any reason to believe that the trail wouldn't, of necessity, have led to Trump, regardless of what McCabe did?

After all, there is, as they say in the trade, a preponderance of evidence. Trump was pursuing a business deal in Moscow during primary season and almost up until election day in 2016. He has a business history rife with Russian money. His eldest son invited Russians linked to the Kremlin into Trump Tower during the campaign to examine kompromat on Clinton - and Trump apparently dictated a false statement to the press meant to cover it up. Trump fired Comey, then bragged about it to the Russian ambassador to the U.S. in the Oval Office while also publicly disclosing classified information. Trump contemplated firing Mueller, and regularly took to his Twitter feed to tamper with or harass witnesses, government officials and law enforcement authorities involved in the investigation.

He has continued to overlook Russia's effort to sabotage the 2016 campaign, despite the consensus between law enforcement and his own intelligence officials that such a thing, indeed, occurred. He has been personally solicitous of Russian President Vladimir Putin (think Helsinki) for reasons that aren't really explained by anything other than self-aggrandizement. Moreover, if Trump has nothing to hide, why is he so determined to meddle with, or obstruct, the Russian investigation to begin with - why not just let it proceed?

If further persuasion is needed about Trump's potential culpability, spend time with a blockbuster report that the New York Times published Tuesday.

In deeply reported detail it lays out two years of what it describes as a "sustained" and "secretive assault by Mr. Trump on the machinery of federal law enforcement." Among the chief revelations in the piece is that Trump - an obstructionist to his core - reportedly tried to install an ally to oversee a separate investigation being run out of the U.S. Attorney's office in Manhattan that involves, among other things, the president and his business.

A more sophisticated argument directed against the FBI in all of this is that under Article II of the Constitution, the president is given broad and almost unilateral power to set the national security agenda. The president decides what is in the best interest of the country and then takes action, according to that interpretation, and the FBI exceeds its mandate when it meddles with the president on matters involving foreign affairs and national security. The hole in that argument is that it presumes the president actually has a cohesive foreign policy in place toward a country like Russia that informs his actions - and that the commander-in-chief is acting with the national interest in mind, not his personal self-interest. Call me cynical, but Trump has a long track record of putting the latter first, and that didn't stop when he was inaugurated.

Trump's lawyers have already argued in a similar vein domestically, saying that Comey's firing, for example, could never be deemed obstruction of justice because the entire Justice Department reports in to the president. The president can hire and fire as he sees fit because he is the boss. There is a counter-argument here as well: Ultimately, the president is not above the law, and he can't use his powers to undermine or interfere with an investigation or judicial proceeding.

All of this involves interpretation of the law, obviously. So litigate it. And stop putting stage props like McCabe in the meat grinder and stop letting the president, the nation's chief law enforcement official, do any more damage to law enforcement institutions than he already has.

Timothy L. O'Brien is the executive editor of Bloomberg Opinion. His books include "TrumpNation: The Art of Being The Donald."

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